APPEAL from the Circuit Court of Douglas County; the Hon.
JAMES N. SHERRICK, Judge, presiding.
MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 10, 1980.
This appeal lies from an order of the circuit court of Douglas County declaring the rights of the parties under section 57.1 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 57.1). The question presented is the ownership of 320 acres of farm land located in Douglas County. The trial court, sitting without a jury, tried the case on a stipulation of facts and permitted an adopted child to take as a remainderman under a deed executed in 1912.
In order to better understand the respective contentions of the parties on appeal, some recitation of the facts and the alignment of the parties, both on the trial and appellate levels, is required.
In 1912, John W. Wagner and Sarah E. Wagner, his wife, being possessed of considerable land, made conveyances by deed of separate tracts of land to four each of their five children. There is no evidence, but it is generally accepted by the family that an equivalent gift of cash was made to the fifth child.
The language in controversy in the deed which is the subject of this litigation reads as follows:
"The grantors, John M. Wagner and Sarah Ellen Wagner, his wife, of the county of Douglas in the State of Illinois, for and in consideration of the sum of sixty-four thousand dollars in hand paid, convey and warrant to Ninah Dunlap Wagner for and during her natural life and upon her death, then to her children, but if no child or children survive her then unto the child or children, and his, her or their descendants surviving the above named grantors, the following described real estate, to wit: * * *."
Ninah Dunlap Wagner was a daughter of John and Sarah Wagner. Conveyances of other property with identical language in the deeds were made to two other daughters, Orpha and Hazel. A fourth conveyance was made to a son, John Dwight Wagner, with the following variation in language:
"* * * for and during his natural life and upon his death, then unto the children of his body begotten of lawful marriage, but if no child or children survive him, then unto the child or children and his, her descendants surviving the above named grantors * * *."
All five children, namely, Ninah Dunlap Wagner Sherman, Hazel Wagner Voyles, Joseph Ralph Wagner, Orpha Wagner Eversole and John Dwight Wagner, survived their parents, the grantors in the deeds. All of them except Ninah had died at the time this suit was filed.
Ninah Dunlap Wagner Sherman, the life tenant under the deed in question, was alive at the institution of this lawsuit but died during its pendency. She had no natural children but adopted one child, Betty Lou Shartel, defendant-appellee (herein Elizabeth Louise Shartel), whom the trial court held to be a "child" within the meaning of the limitation in the 1912 deed.
The plaintiff in this action is the executor of John Henley Eversole, the only child of Orpha Eversole, one of the children named above. He claims that his decedent became the owner of an undivided one-fifth of the land under the deed to Ninah Dunlap Wagner Sherman. This claim is premised on the conclusion that Elizabeth Louise Shartel, being an adopted child, could not take as a remainderman under the 1912 deed and therefore his decedent took the one-fifth share as a descendant of his mother, one of the children of the grantors who survived them.
Defendants on the trial level were Ninah and her adopted daughter Elizabeth, together with all the living grandchildren and great-grandchildren of the grantors. As previously indicated and as will be more fully developed below, the trial court held in favor of the defendant Elizabeth Louise Shartel, adopted daughter of Ninah. Its final order places the fee simple title to the premises in Elizabeth.
On appeal the parties have realigned themselves. The living grandchildren and great-grandchildren (herein grandchildren) are appellants and plaintiff and Elizabeth are appellees. The first and primary issue on appeal is whether Elizabeth, as an adopted child, can take as a remainderman under the deed. If she cannot, plaintiff and grandchildren will share in the premises, and therefore ...